State Of Or. v. Lopez-minjarez
|237 P.3d 223,236 Or.App. 270
|28 July 2010
|STATE of Oregon, Plaintiff-Respondent, v. Petronilo LOPEZ-MINJAREZ, Defendant-Appellant.
|Court of Appeals of Oregon
Shawn E. Wiley, Chief Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services. Petronilo Lopez-Minjarez filed the supplemental brief pro se.
Anna Maria Joyce, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.
Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge. *
Following a jury trial, defendant was convicted of six counts of aggravated murder, ORS 163.095; two counts of felony murder, ORS 163.115; one count of first-degree kidnapping, ORS 163.235; one count of second-degree assault, ORS 163.175; and two counts of first-degree burglary, ORS 164.225. The jury sentenced defendant to life imprisonment without the possibility of parole. On appeal, he raises two assignments of error. First, defendant asserts that the trial court erred in giving the “natural and probable consequences” uniform jury instruction addressing accomplice liability. Second, defendant claims that the trial court erred in excluding expert psychological testimony that he was prone to submission to his father, the co-perpetrator in the crimes. Defendant also has filed a pro se supplemental brief in which he makes a number of other arguments. We reject defendant's second assignment of error and the arguments raised in his pro se brief without discussion. For the reasons explained below, we reverse in part and remand.
“Because defendant was convicted of the charged offenses, we state the facts in the light most favorable to the state,” State v. Viranond, 346 Or. 451, 453, 212 P.3d 1252 (2009), except as otherwise noted. Sometime in 2001 or 2002, defendant's mother began having an extramarital affair with Armando Saul Lopez-Villatoro. Word of the affair eventually reached defendant's family after Lopez-Villatoro's daughter confronted defendant's mother and, the following day,
defendant's sisters got into a physical confrontation with Lopez-Villatoro's daughter. Defendant's father initially refused to acknowledge the affair, but in November 2004, he was provided with proof of the affair. Like the rest of his family, defendant was upset when he learned of the affair.
The night before the murder, which was committed in late November 2004, an attendant working at a gas station near the intersection of Highways 26 and 47, west of Portland, sold gas to defendant and his father, who were in defendant's white four-wheel-drive pickup truck. Defendant and his father told the attendant that they had been out sightseeing on the back roads. Two shovels were in the bed of the truck.
The following day-the day of the murder-the same gas station attendant saw defendant's truck on a turn-out about five miles up Highway 47 from the gas station; the turn-out was near a road that leads “up into the woods.” That turn-out was just over a mile from where the victim's remains were found. During the afternoon of the murder, defendant's father twice called the Lopez-Villatoro home from pay telephones. Later that day, defendant's father arrived, unannounced, at defendant's house. He was upset about his wife's affair. Defendant had been drinking beer and, when his father arrived around 5:00 p.m., they went out to purchase a case of beer, which they consumed. From the store where they purchased the beer, defendant's father again telephoned the Lopez-Villatoro home. Defendant's wife later went out to purchase more beer for defendant and his father. As the men sat drinking beer-“[a] lot” of beer, according to defendant's wife-defendant's father talked about being upset with his wife, defendant's mother. Sometime while he was at defendant's house, defendant's father made another telephone call to the Lopez-Villatoro home. At about 9:00 p.m., the two men left defendant's house in defendant's truck.
Defendant and his father drove to Lopez-Villatoro's house in Aloha. Lopez-Villatoro, his wife, and one of his sons were out of town on a business trip. Lopez-Villatoro's other son, the victim in this case, was spending the evening with his girlfriend. No one was home at the Lopez-Villatoro home when defendant and his father arrived. Shortly thereafter, however, the victim arrived in his car. Defendant testified that his father pushed the victim into the house and, after screaming at him, shot him with a .38 caliber handgun he had brought with him. Blood matching the victim's blood was later found on the stairs and walls of the Lopez-Villatoro home. Although defendant testified that he never entered the house, the state's theory was that both he and his father entered the house and shot the victim. That theory was supported by some of defendant's contradictory statements and evidence about the layout of the home.
After the victim was shot and wounded, the three men headed toward defendant's truck, with defendant and his father “basically dragging” the victim, according to an
eyewitness neighbor. As they approached defendant's truck, the neighbor confronted them. In response, either defendant or defendant's father turned toward the neighbor and displayed a handgun. The neighbor left and crouched behind a gas meter, around the corner of the house. Defendant and his father placed the wounded victim into defendant's truck and drove off. As they left, the neighbor noted the license plate number and called police to report what had happened.
As they drove, the victim was sitting between defendant and his father, in the front seat of the truck. Defendant's father was holding the gun to the victim's ribs. At some point after leaving the victim's house, defendant told his father that he needed gas for the truck. He dropped his father and the victim off at a construction site, and he filled the truck up with gas; he then returned to where he had left the victim and his father and picked them up.
At this point in the narrative, defendant's story again diverges from that of the state. According to defendant, his father dropped him off at a McDonald's restaurant and left with the victim. Defendant testified that he spent 30 to 40 minutes hiding in the restroom of the restaurant before his father returned. When his father returned and picked him up, according to defendant, the victim was no
longer with him; the father told defendant to start cleaning up the blood in the truck. The pair returned to defendant's house.
The state's theory was that defendant was never dropped off at the McDonald's restaurant. Instead, the state asserted, defendant and his father both took the victim into the woods off Johnson Road to a place that commonly was used for target shooting-and where the victim's body was later found-and shot him to death. The state introduced evidence that none of the employees at the McDonald's saw defendant on the night of the murder. It also introduced evidence that the distance from where the victim's body was found and the McDonald's where defendant claimed he had hidden out could not have been driven in the time that defendant claimed he was away from his father. Finally, the state introduced evidence that defendant and his father had previously gone target shooting in the woods at or near the area where the victim's body later was discovered by bow hunters.
When defendant and his father arrived at defendant's house, defendant's father left in his car; he has not been seen since. Defendant immediately went inside and took a shower. When police officers-who were monitoring the house-were alerted that defendant's truck was observed at his house, they approached the house. Defendant's wife answered the door, and the officers asked for defendant. Defendant came to the door and yelled, “Go ahead and shoot me, I'm not afraid of you white cops.” Defendant then said, “Go ahead and arrest me.” The police officers did so.
When officers examined defendant's truck, they saw blood on the outside of the passenger door, on a car seat in the back, on a diaper bag sitting on top of the car seat, on the floorboard in the back of the truck, and on the passenger side door. The shovels were still in the bed of the truck. Later, a forensics team found blood on the windshield, the dashboard, the passenger's seat, the steering wheel, the back floor, and on magazines strewn in the vehicle. A criminalist found blood on jeans that appeared to belong to defendant. Two spent .38 caliber shell casings and one live .38 caliber round were found in the truck. Blood was also found inside the bathtub and on the base of the tub where defendant had just showered. The blood found on the jeans and the blood in the truck matched the victim's DNA profile. Defendant ultimately was charged with a number of crimes, as related above.
Before closing arguments, after both parties rested, the court and counsel discussed the parties' proposed jury instructions. The state had requested that the court give Uniform Criminal Jury Instruction No. 1052, “Aider Or Abettor-Liability For Probable Consequences.” That instruction states:
“A person who aids or abets another in committing a crime, in addition to being criminally responsible for the crime that is committed, is also criminally responsible for any acts or other crimes that were committed as a natural and probable consequence of the planning, preparation, or commission of the intended crime.”
Defense counsel objected to the proffered instruction on “natural and probable consequences.” Citing
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